93 Decision Citation: BVA 93-05362
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-53 678 ) DATE
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THE ISSUE
Entitlement of the veteran's surviving spouse to additional
dependency and indemnity compensation based on the need of
regular aid and attendance by reason of being permanently
housebound.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
B. P. Gallagher, Counsel
INTRODUCTION
The veteran, who had active service from December 1933 to
December 1936 and from March 1937 until April 1954, died in
January 1969. The appellant is the veteran's surviving
spouse.
This case comes before the Board of Veterans' Appeals
(Board) as a result of rating decisions by the Department of
Veterans Affairs (VA), Montgomery, Alabama, Regional Office.
The rating decision in August 1991 denied entitlement of the
appellant to additional dependency and indemnity
compensation based on the need for aid and attendance or
housebound benefits. Notice of disagreement was filed in
September 1991. A statement of the case was issued in
October 1991. The substantive appeal was received in
October 1991. A rating decision in December 1991 continued
the denial of the benefits sought. A supplemental statement
of the case was issued to the appellant in December 1991.
This case was received and docketed at the Board in January
1992. The appellant has been represented during her appeal
by The American Legion and that organization submitted
additional written argument in May 1992. The case is now
ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that as a result of her chronic
health problems she requires the aid and attendance of
another person. She maintains that her loss of sight is so
severe that she requires the assistance of another person.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all
evidence and material of record in the claims file and for
the following reasons and bases, it is the decision of the
Board that the evidence does not establish that the
appellant is entitled to additional dependency and indemnity
compensation based on the need for aid and attendance or by
reason of being housebound.
FINDINGS OF FACT
1. The appellant is not a patient in a nursing home or
helpless or blind or so nearly helpless or blind as to
require the regular aid and attendance of another person.
2. The appellant is not substantially confined to her home
or immediate premises by reason of disability or
disabilities which are reasonably certain to remain
throughout her lifetime.
CONCLUSION OF LAW
The criteria for additional dependency and indemnity
compensation based on the need for regular aid and
attendance or by reason of being housebound have not been
met. 38 U.S.C.A. §§ 1122, 1311, 5107 (West 1991); 38 C.F.R.
§§ 3.351, 3.352 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, we have found the appellant's claim to be well
grounded and that all relevant facts have been developed.
The monthly rate of dependency and indemnity compensation
payable to a surviving spouse shall be increased if the
payee is a patient in a nursing home or helpless or blind or
so nearly helpless or blind as to need or require the
regular aid and attendance of another person.
Determinations as to need for aid and attendance must be
based on actual requirements of personal assistance from
others. In making such determinations, consideration is
given to such conditions as: Inability of claimant to dress
or undress herself or to keep herself ordinarily clean and
presentable; inability of the claimant to feed herself or to
attend to the wants of nature; or incapacity, physical or
mental, with care or assistance on a regular basis to
protect the claimant from hazards or dangers incident to her
daily environment. "Bedridden" will be a proper basis for
the determination and is defined as that condition which,
through its essential character, actually requires that the
claimant remain in bed. 38 U.S.C.A. 1122(b), 1311; 38
C.F.R. 3.351, 3.352.
The monthly rate of dependency and indemnity compensation
payable to a surviving spouse shall be increased if the
surviving spouse is by reason of disability, permanently
housebound and does not qualify for aid and attendance
allowance. The requirement of "permanently housebound" will
be considered to have been met when the surviving spouse is
substantially confined to such surviving spouse's home or
immediate premises by reason of a disability or disabilities
which it is reasonably certain will remain throughout such
surviving spouse's lifetime. 38 U.S.C.A. 1311(d); 38 C.F.R.
3.351(e).
A report of an examination to determine the need for aid and
attendance conducted in July 1991 was received in support of
the appellant's claim. It was reported that the appellant
was 64 years of age; that she was not bedridden; and that
she was able to dress and bathe unassisted as well as go to
the bathroom and eat unassisted. It was reported that she
was able to walk in and out of the house unassisted.
Disabilities reported included osteoarthritis, hypertension,
cataracts of both eyes, and vitamin B12 deficiency.
A report of Bruce Wasserman, M.D., dated in November 1991,
reflects that he had treated the appellant since 1989.
Since that time she had undergone cataract surgery with
intraocular lens implant of the right eye. Previously she
had undergone cataract surgery on the left eye performed by
another physician. He stated that this year he had
performed a Yag Laser on her right eye which improved her
vision to 20/50 with spectacle correction. Vision in the
left eye was 20/30 with spectacle correction.
In evaluating the appellant's claim for the need for aid and
attendance the Board notes that she is not a patient in a
nursing home. In addition, while she has had problems with
cataracts it is apparent that the appellant is not blind.
For example, the report of her private ophthalmologist
indicated that her corrected vision was 20/50 in one eye and
20/30 in the other. So, we find that the appellant is not
so nearly helpless as to need the regular aid and attendance
of another person. The record indicates that she can
perform her personal functions without the aid of another
person. In addition, she is not bedridden. Therefore, the
Board can find no basis to grant the appellant's claim for
additional benefits on the basis of the need for regular aid
and attendance.
In regard to the claim for housebound benefits, as indicated
above, the evidence must demonstrate that she is permanently
"housebound" or substantially confined to her home or
immediate premises by reason of disability or disabilities.
The evidence does not demonstrate that she is confined to
her home or immediate premises by reason of disability or
disabilities. For example, it was found on the July 1991
examination that she could walk in or out of her home
unassisted. Accordingly, entitlement to housebound benefits
has not been established.
In summary, although the appellant does suffer from several
disabilities including arthritis and hypertension, and
although she has had cataract surgery on both eyes, the
evidence does not demonstrate that she meets the
requirements for additional benefits on the basis of the
need for either aid and attendance or by reason of being
housebound.
ORDER
Entitlement of the appellant as the surviving spouse of the
veteran to additional dependency and indemnity compensation
based on the need for aid and attendance or by reason of
being housebound is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
GARY L. GICK H. STERLING, M.D.
*
(Member Temporarily Absent)
(CONTINUED ON NEXT PAGE)
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.